house be on fire in a Towne men may iustifie the pulling downe thereof and of the next adjoyning houses if there be cause to prevent the burning of the whole Towne it being for the Common good Yea o Fishers at Sea may iustifie their going on other mens ground adjoyning to the Sea because their fishing is for the common profit of the whole Realme If then private persons may thus legally prejudice other particular men in these cases in their Lands and Houses for the common good then much more may the whole representative body of the Kingdome in Parliament seize upon Hull and the Magazine there for a season being the Common-wealths and the Kings onely in right of and for the service of the Kingdome for the publique peace and safety and the prevention of Civill-warres without any danger of trespasse much lesse of Treason in making Sir Iohn Hotham their Agent in this Service They having a common interest therein since Souldiers Citizens and other private persons may lawfully raise Forts and Trenches on others grounds or pull down any houses and suburbs for the publique good though they have no particular interest in their lands or houses but onely a temporary common interest upon these publique occasions The fourth PROPOSITION THe fourth Proposition is this That in all doubtfull cases of Treason not within the expresse Letter and words of 25 E. 3. Parl. 5. c. 3. neither the King himselfe nor his Iudges but the Parliament and King in Parliament if hee will be there ought to declare and determine what act is Treason and what not This is cleare by these expresse words of 25. E. 3. c. 3. of Treason And it is accorded that if any other case supposed Treason which is not above specified in this Act doth â—appen before any Iustices the Iustices shall â—arry without any going to judgement of the Treason 〈◊〉 the cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or Felony Which clause was afterwards ratified by 11 R. 2. c. 3. 1 H. 4. c. 10. and by 21 R. 2. c. 11. where Judge Thorning affirmes That the Declaration of Treason not declared belongeth to the Parliament which part of declaring Treason some hold is utterly taken away by 1 Maâ—â—a Session 1 Râ—sâ—al Treason Sect. 20. which others deny and that no other Treason is or can be at this day unlesse by speciall Act of Parliament but what is within the very Letter of 25. â— 3. c. 3. This being indubitable these Conclusions will necessarily follow First that neither his Majestie alone nor yet accompanied with his privy Counsell or Iudges hath any legall power or right at all to declare or determine what is Treason and what not or to declare or adjudge any particular Act to be Treason unlesse it be clearely within the expresse Letter of 25 E. 3 c. 3. Therefore his Majesties own private p Declaration of Sir Iohn Hothams Act in seising the Towne and Magazine of Hull and his refusall to admit his Majestie into the Town when he came to dispossesse him of it to be Treason being out of the Letter of the 25. Ed. 3. and his proclaiming of him to be a Traytour must necessarily be both void and illegall Secondly The Kings Judges and Justices even in Courts of Judicature where they may finally determine and resolve what is law in all other cases neither can may nor ought to declare and determine what is Treason and what is not in any cases out of the very Letter of 25. E. 3. but ought to resert to the Parliament and receive a resolution from them whether it be Treason or not So are the expresse words of this Act of 25. E. 3. and others since If then the Judges are thus to be resolved by the Parliament onely what is Treason and what not then there is no reason or sence why the Parliament should be sent to the Judges to be advised and resolved by them what is Treason or why the Parliament should be taxed for Voting Sir Iohn â—othams Act not to be Treason without consulting first with the Iudges to know of them whether it were Treason or not Since the Parliament in this case of Treason are to direct and resolve the Judges not the Judges them Thirdly both Houses of Parliament upon the Kings Appeale to them for justice against Sir Iohn Hotham as a Traytour for not admitting him into Hull and upon Sir Iohn Hotâ—ams Letter to them relating the truth of his whole carriage to the King in this cause have acquitted Sir John Hotham and q Voted this Act of his warranted by the command of both Houses not only to be no Treason nor Felony but not so much as a Misdemeanour seeing all he did was only in discharge of the trust which the Parliament had reposed in him for the safety and peace of the whole Kingdome and prevention of a Civill-warre Since then the whole Parliament the onely proper Judges of Treason upon the Kings and Sir Iohn Hothams severall appeales to them have both voted and resolved Sir Iohn Hothams Act to be no Treason nor Crime nor he to be any Delinquent neither the King himselfe who oft professeth in his late Declarations to rule and governe all his people onely according to the Laws of the Realme according to his Oath nor his Counsell nor Judges can by any proclamation or Declaration or by any Judgement in any Court of Justice which hath Conusance of Treason declare this Act of his to be Treason or him a Traytour or Offender Let all of them and the whole Kingdome both for the present and future rest fully satisfied and concluded by the â—arliaments Votes and Resolutions whom our Lawes declare to be the onely proper Judges of this cause pretended to be Treason and so Sir Iohn Hotham must go scot-free Having thus passed through these foure Propositions and the Deductions from them I shall now draw towards a conclusion of this Discourse Sir Iohn Hothams case and Pulls truly stated and debated The onely if not principall pretence of his Majesties late raysing an Army in the North and of a most sad and unseasonable Civill-warre which if proceeded in may soone prove destructive to all his Majesties three Kingdomes is Sir Iohn Hothams seising on the Towne of Hull and the Magazine there by Order from the Parliament for the peace and security of the Realme and his denying his Majestie entrance into the Towne when he came to take possession of it Which Acts his Majestie hath in his Proclamations and Declarations declared and proclaimed to all his subjects to be no lesse then high Treason and Sir Iohn â—otham to be a notorious Traytour The sole question then will be Whether these Actions of Sir John Hotham be Treason or not by the Laws of the Realm And under correction I conceive it is as cleere as the Noone-day Sunne that they are no Treason That his taking possession
of this Towne and Magazine is no Treason no nor yet so much as a Trespasse or offence in point of Law I have sufficiently demonstrated in the r premises Whether his denying his Majestie to enter Hull and his keeping possession of it be high Treason will there be the sole question which before I shall determine I shall truly state the case Å¿ Sir Iohn Hotham by Order of both Houses of Parliament was enjoyned to keep possession of the Towne and Magazine at Hull for the prevention of Civill-warres and preservation of the peace and safety of the Realme which some malignant Spirits advised his Majestie to seize on and turne against the Kingdome and not to deliver them up to any whatsoever without their speciall Order The King on the 23 of Aprill rode to Hull attended with about 400. Horse the Duke of Yorke and Prince Elector being at that instant royally entertained by Sir Iohn Hotham in the Towne who came thither the day before and required Sir John Hotham to deliver up the Town into his hands Who perceiving his Majestie to be accompanied with such force as might have mastered the Garison of the Towne and having received Intelligence of an intention to deprive him of his life if the King were admitted informed his Majestie of that trust reposed in him by both Houses that he could not admit him into the Town without breach of that trust and therefore humbly beseeched his Majestie to give him leave to send to the Parliament to acquaint them with his Majesties commands and to receive their directions thereupon which hee would do with all expedition His Majestie rejecting this Answer presently caused him and his Officers to be proclaimed Traytors before the Towne Walls and dispatched a Message to both Houses charging Sir Iohn Hotham with high Treason aggravating his offence and demanding Justice against him The Parliament upon true Information and stating of the case the 28. of Aprill 1642. resolved upon the Question That Sir Iohn Hotham according to his Relation had done nothing but in obedience to both houses of Parliament That this declaring Sir John Hotham Traytor being a Member of the house of Commons is an high Breach of Priviledge and being done without processe of Law is against the liberty of the subiect and the Law of the Land This being the true state of the case I shall clearely manifest by the Law of the Land this Act of Sir Iohn Hothams to be no Treason and he no Traytor It is irrefragably evident by the Statutes of 1 E. 6. c. 12. and 1 Mariae 1. Session Rastall Treason 20. that there is no Treason at this day but what is within the very Letter of 25 E. 3. c. 3. all other Treasons being repealed by these Acts or expired The Question then will be Whether this case be within the very Letter of 25. E. 3 Certainely there is not one syllable in this Act which concernes this case The King pretends it is within these words If any man do levy Warre against our Soveraign Lord the King in his Realme that it is Treason by the Letter of this Act. But here there is no levying of war no act of hostility or war was exercised by Sir Io. Hotham against the K Sir to Hotham was onely passive defensive not active he only denyed his Majestie the possession of the Town by order from Parliament to prevent warre and preserve peace and if he be a Traytor the whole Parliament must be much more Traytors who put him upon this service Quiâ—… plus peccat Author quam Actor as our Law determines Therefore this neither is nor can be any leavying of Warre against the King or Treason within this clause This is most apparant by the Statute of 5. and 6. Ed. 6. c. 11. Which because the detaining of the Kings Forts from him was not within the words or intention of 25. Ed. 3. did specially enact That of any person or persons after the first of Iune Rebelliously marke the word do detaine keepe or with-hold from our Soveraign Lord his heires and successors any of his or their Castles Fortresses or holds within this Realme or any other the Kings Dominions or Marches Or Rebelliously keepe detaine or with-hold from his said highnesse his heâ—res or successors any of his or their Ships Ordinances Artillery or other Ammunitions or Fortifications of Warre and do not obediently render and give up unto our said Soveraign Lord his heires or successors or such persons as shall bee deputed by them such Castles Fortresses Fortilesses Holds Ships Ordinances Artillery or other Munitions or Fortifications of Warre rebelliously kept or detained within six dayes nex after they shall be commanded by our said Soveraigne Lord his â—eires or Successors by open Proclamation under the great Seale the same Proclamation to be made in such place and order so as the party and parties to be charged by this Act may conventently have notice or knowledge thereof that then every such person or persons so offending in any the Premises their Abbettors c. Being lawfully convicted of the Rebelliously keeping or detaining thereof according to the Lawes and Statutes of this Realme shall be adjudged Traytors and shall suffer paines of death and lose and forfeit all their goods and chattles Lands and Tenements unto the King as in cases of high Treason This Act makes the detaining of any of the Kings Castles Forts c. Treason But yet with these three Limitations First that they must be Rebelliously kept and with-held which Hull was not but onely by Order of Parliament for the Kingdomes peace and safety Secondly that they must be â—etained six dayes at least after command to surrender them But the King proclamed Sir Iohn Hotham a Traytour for not delivering up Hull the same day and houre he demanded it without giving him any respite which is contrary to this Act Thirdly There must be a Proclamation under the great Seale to demand the Forts and Castles and the same Proclamatio must be so made that those who detain them may have notice of it But in this case there was no such Proclamation made against Sir Iohn Hotham but by an herald by word of mouth and so no Treason within the Law admit it were in force But this Law and clause which if in force might have given some colour to his Majestie as all Judges and Lawyers resolve was totally repealed by the statute of 1 Mariae Râ—stall Treason 20. which expresly repeales all other Treasons but those within the very Letter of 25. E. 3. and so the detaining of any Forts or Castles at this day from the King is no Treason because not within the words of 25. E. 3. chap 3. the onely Standard and surviving Law to judge Treasons by This Statute of 5. Ed. 6. c. 11. being repealed and this case being not within the Act of 25. â— 3. the Parliament in 14. Eliz. was enforced to make a speciall Law which
Kingdomes use till it may without danger to the Realme by Order of Parliament be rendred up into his Majesties actuall possession who hath no particular Right or Title to it but onely a generall as the Kingdomes Servant and trustee for the peoples safety which is now endangered through his Majesties listening to evill Counsellours Who whisper to him in private and have engaged him in a Civill-warre against his Parliament and people and not hearkening to his Parliament the Graund Counsell both of King and Kingdome whose publique impartiall advice his Royall Progenitors have alwayes most highly esteemed and followed and thereby made themselves great and honourable and the Kingdome happy The Conclusion I shall now winde up all in a few words I suppose I have made it most apparently evident to every indifferent mans judgement that Sir Iohn Hothams forecited Actions with which his Majestie is so much incensed are neither Treason nor Felony by the Laws of the Land by which his Maiestie hath oft lately protested to rule and be guided the t Kings of England by their Coronation Oaths being subject to their Lawet not their Lawes to them and by the Parliaments Resolution not so much as a Misdemeanour or offence but a lawfull act done by the expresse commands for the publique peace and safety of the Realme and prevention of a Civill warre I appeale then to his Majestie to every English mans or other Subjects Conscience and advise them all in the presence of God as they will answer the contrary at the great approaching day of Judgement seriously to consider and then resolve within their brests whether these inoffensive Acts of Sir Iohn Hotham accompanied with all the praerecited Circumstances be a just and sufficient ground to the King or any of his subjects in point of conscience or policy especially in this season when Ireland is in danger of losing and England almost exhausted with necessary publique payments With voluntary contributions and much dâ—â—â—acted and divided in it selfe to raise an unnaturally bloody civill warre against Hull and in it against the Parliament and Kingdome by which the King and his Parâ—isons will be by degrees so farre ingaged against the Parliament and his Kingdome and they by way of just defence so farre engaged against the King and them without Gods mercifull prevention that we shall all now after so long enjoyed peace most unnaturally sheath our swords in one anothers bowells out one anothers throats shed one anothers blood burne spoile waste destroy and prey upon one anothers houses Lands Goods possessions make our whole Kingdome a very Field and Sea of English blood and in conclusion without Gods interposing mercy utterly raine both our King Kingdome Parliament Religion our selves and our posterities and make our Land a Prey to Popish forraigne enemies who now rejoyce at our Divisions which they much foment and thereby hope to surprize and wholly conquer us ere it be long And if our consciences answer us as they will after full deliberation that thesâ— Acts of Sir Iohn â—otham be no just cause or ground to warrant such unnaturall bloody fatall destructive civill war O let us not then once venture or presume to take up Armes against our owne deare native Country which hath bred us against the Parliament who sit night and day and spend both their Fortunes time and Spirits to redresse our grievances prevent our immanent dangers advance our happinesse and prosperity and preserve our long enjoyed Tranquilitie against our deare loving brethren kindred friends and Countreymen who never did us the least injury against our selves our children families which a Civill-warre may quickly ruine nor yet to countenance justifie or side with those unnaturall vipers and unreasonable â—ottish Brutes who either maliciously or inconsiderately foment and promote such an unnaturall impious causelesse civill warre But let us all put forth our utmost best endeavours and powre out our fervent prayers to God to prevent and cease these civill combustions to ayd and preserve our deare Native Countrey Kingdome Religion the Parliament our selves and our posâ—erity against these malignant Incendiaries who seeke their utter destruction O let no true bred English man or Christian be so degenerous so Bâ—rbarous and brutish as to become his owne his deare brethrens posterities Countries Kingdomes bloody Executioner to do such disservice to his Countrey in a few dayes or houres which he shall with brinish teares repent for over I shall likewise humbly presume to beseech his Majestie upon the bended knees of my soule most seriously to consider all the Premises and if upon persual of them there shall appeare no just or lawfull cause in point of conscience and true Christian not Machivillian policy necessarily to enforce him to make a civil warre upon his Kingdome onely for the act of one particular Subject as is yet pretended which in truth amounts not by the Law either to Felony or Treason if to a trespasse or Misdameanor that then he would be most graciously pleased according to his Oath his Royall Duty and many reiterated Protestations to preserve his people and Kingdome in a sweet peace and blessed unity to disband his present Forces and tumultuous Cavaliers discard all bloody Counsellors who have advised him to a most unnaturall unseasonable dangerous civill warre to returne with speed to London and close with his great and best Counsell the Parliament for the preservation and present ayd of bleeding Ireland the setling and composing of his peoples present feares and distractions the effecting of of a perfect thorough Reformation and Union in Church and state the redresse of all remayning grievances the advancement of Truth of the flourishing estate of his three Kingdomes and his owne Royall Honour Revenues and Greatnesse which will eternally gaine his Majestie the servent Prayers hearts affections purses and ready service of all his Kingdomes and subiects together with immortall honour whereas if he shall still proceed in prosecution of this desperate civill warre against his people Kingdom Parliament the guilt of all his subjects innocent blood which shall be shed in this unnaturall causelesse warr will light heavy upon his conscience be required at his hands and in conclusion both himselfe his Kingdomes and loyall people will be brought to the very extremity of misery If not to utter ruine after such a long enjoyed flourishing peace both under his owne and his predecessors peaceably raignes I shall conclude with that of the Poet u Pax optima Rerum Homini novisse datum est Pax vna Triumphis Innumeris poâ—â—r Pax custodne salutem Et Cives aquare potens Te petimus omnes O Most gracious Lord God though thou justly plague us with thy other Iudgements for our sinnes yet give us not over to the sword the forrest of all thy Iudgements an unnaturall bloody civill warre but since thou art a x God of peace and hast promised y to give thy people the blessing of peace which we of
may justly protect and defend themselves even as Souldiers Children Wives Servants may by the equity of all Laws lawfully by open force defend themselves against the bloody assaults and violence of their Generalls Parents Husbands Masters who seeke to take away their lives though in all lawfull things they ought to be subject and obedient to them If a King should causelesly run at a subject with a naked sword to kill him the subject may lawfully put by his thrust and defend his life which a King haâ—h no power to take away * but upon just grounds after a legall triall and that in a legall not an extraordinary way Much more then may the whole Parliament and Kingdome withstand a Kings open causelesse hostility against them to preserve themselves and the Kingdome from destruction This is evident even by divine Authority as namely by the example of David who though a subject n tooke up Armes and raysed an Army to defend himselfe against King Saul his Soveraign who causelesly made Warre against him and sought his life and though he still avoyded Saul and twice refused to hurt or murther his Person when he was in his power because he was Gods anointed Yet no doubt had Saul assaulted him with his Armie he would have defended himselfe against him in Battel Nay this is manifest in an Higher Degree by that most Observable Passage in the 1 of Samuel 14. 39. to 46. Where when King Saul had made a Rash vow that whosoever had tasted any thing that day contrary to his command whiles he pursued the Philistines he should dye the death though it were Jonathan his Sonne who procured that Victory and the Lot fell upon Jonathan who did but tast a little Honey on the top of his Rod who said and lo I must dye for this Saul answered God do so and more also for thou shalt surely dye Jonathan the people thereupon said to Saul notwithstanding he were their King and had made two such solemne Oaths shall Jonathan die who hath wrought this great deliverance in Israell God forbid as the Lord liveth that shall not one haire of his head fal to the ground for he hath wrought with God this day so the people rescued Ionathan that he died not Here the people not only justly defend but rescue Jonathan being an Innocent from death not onlie contrarie to the resolution but vowes and Oaths of their owne King to put him to death and so doubtlesse they would have defended themselves by force in the like case There is a notable place to this purpose in the 1 of Kings 12 13. to 25. 2 Chron. 11. 1. to 5. Where when the ten Tribes through Rehoboams following of the rash Counsell of the young men revolted and rebelled against him being their lawfull King and made Ieroboam King over them Rehoboam as soon as he fled from them and came to Ierusalem assembled all the Tribe of Iudah and the House of Benjamin an hundred and fourscore thousand men which were Warriers to fight against the House of Israel who rebelled and revolted to bring the Kingdome againe to Rehoboam the Sonne of Solomon But the word of God came to Shemajah the man of God saying speake unto Rehoboam the King of Iudah and unto all the house of Judah and Benjamin and to the remnant of the people saying Thus saith the Lord You shall not go up to fight against your Brethren the Children of Israel though Rebells returne every man to his house for this thing is from me They hearkned therefore to the word of the Lord and returned to depart according to the word of the Lord from going against Ieroboam and their Brethren Here God himselfe prohibits both King and people to raise a Civill-warre against their Brethren though Rebells and Revolâ—ers in the highest degree and they both lay downe Armes hereupon for the present And when Rehoboam and Abijah his sonne afterwards made warre upon them they did lawfully resist and oppose them 1 Kings 14. 30. c. 15 6. 2 Chron 12 15. and chap. 13. throughout So the men on Tirzah being beseiged by King Omri to take Zimri lawfully defended themselves for a time 1 Kings 16 17 18. and thus did those of Bethmaachan against Ioab 1 Sam. 20 14. to 23. To passe from Scripture presidents Infinite are the examples in histories of subjects who by the very dictate law of natur wch instructeth every creature to defend it selfe against unjust violence defended themselves in all ages against the assaults oppressions and groundlesse Warres of their unnaturall Princes But the many late examples of this kinde of the Protestants in France Germany and Bohemia who have by open force defended their persons estates Religion against those Popish Kings and Governours who have causelesly levyed Warre against them which act of theirs all Protestants affirme to be lawfull both by the lawes of nature God and man and our owne domesticke examples of the long continued Barons Warres both in King Iohns o King Henry the thirds Edward the seconds and Richard the seconds Reignes who took up Armes against these Princes for the just defence preservation and establishment of the Laws and Liberties of the Kingdome which these Princes contended to subvert even in times of Popery which act of theirs by the Prelates Clergy and people of those times and by all succeeding Ages since was and hath been resolved not onely lawfull but p honest just and honourable and worthy eternal Encomiums by meanes whereof our Kingdome hath quietly enjoyed those Lawes and Liberties which they contended for ever since which otherwise had been long agone utterly lost and the Kingdome with them will aboundantly suffice to cleare and ratifie this conclusion beyond all contradiction or excepâ—ion of any malignant Spirits Fifthly that it is lawfull and necessary for the Parliament for the preservation of the Kingdomes peace and safety its necessary defence and the better prevention of Civill-warres to settle the Militia and secure the Magazines of the Realme by such meanes as may most effectually advance and accomplish this great much opposed worke since His Majestie hath refused to passe a Bill to accomplish it Neither is this way of setling the Militia a Novelty but the most ancient practice and custome of this Kingdome for it appeares by King * Edwards Lawes that in his and former ages the Lievtenants and supream Commanders of the Mlitia in every County were elected per commune Concilium pro communi vâ—ilitate regni per provincias et patrias vniversas et per singulas Comitatus in â—leno Fulkemots by the Common-counsell for the common utility of the Realm through every Province Countrey and County in a full Falkmoth or County Court by the Freeholders of the County And if the Freeholders in ancient times did thus in every County elect their Lievtenants and Captaines of their Militia to Train and Order them yea and the high Sheriffs too who had the
truth worthy consideration when ignorance and incredulity hath lately occasioned many grand inconveniences and mistakes This is most apparant by this familiar demonstration for as much as the King hath no right or interest in these Forts Towns or Magazines as he is a private person but only in right of his Crowne as he is King of England and the publique Minister or Servant of the Kingdom to provide for its security and tranquility in times of warre or danger and its prosperity in times of peace Wee all know that by the Law of the Land the King cannot sell or alien the Lands or Revenues of the Crowne yea our Law-books and Judges have resolved Å¿ that the King by his will cannot demise any of his Lands t That though the King make a will and give Legacies of his own private goods which hee hath yet he cannot demise the Iewells Plate Coronets and goods of the Crowne And if the u King hath the body of a Ward the temporalities of a Bishop by way of sequestration in his possession or right to present to a Church that is void and make his executors and dye his Executors shall not have the Ward tempâ—â—â—lties or presentation though chattles as a common persons executors shall have but the succeeding King So if Subsidies be granted and the King dye before they are lâ—vyed his Executors shall not enjoy them though a chattle but his Successor So the successor King not the Kings Executors shall have all his Ships Ordinance Powder Armes and Ammuniâ—ion though chattles because they are not the Kings but Kingdomes and purchased with the Kingdomes money 1 Eliz. x cap. 19. 1 â—ac c 25. because the King hath not only his Lands but even these very Chattles in right of his Crown as King not as a private person for the benefit of the Kingdome When King Iohn most unworthily with the consent of some of his Barons resigned his Crowne and Kingdome of England to the Pope Pâ—â—lip the French King though his enemy declared this Act void y Because no Kiâ—g nor Prince can give away the Kingdome which is the Common-wealths and all the Noblemen of France there present begun to cry with one voyce that they would staâ—d to this truth even to death This matter of this Kings grant made to the Pope being proposed and discussed in full Parliament in the 40 yeare of Edward the third z Vpon full deliberation the Prelates Dukes Earles Barons and Commons answered and resolved with one accord That neither the said King John nor any other can put him nor his Reâ—lme nor his people under such subjection without their assent and as by many evidences it appeareth if it were done it was done without the raâ—â—â—nt and contrary to his owne Oath at his Coronation And besides this the Dukes Earles Barons Gentlemen and 〈…〉 accord and agree that in case tâ—e Pope shall enforce or attempt by Procâ—s or by any other manner of dâ—ing tâ— constraine the King or his subiects to performe this as it is said hee will these parties wiâ—â— resist wiâ—â— all their puissance So that by the Resolution of this whole Parliament the King cannot grant away his whole Kingdome without his pâ—oples consent in Parliâ—ment and by the selfe same reason not any part parceil Towne or Fort thereto belongiâ—g thâ—y being the Kingdomes not the Kings owne right The Civilians of forraign parts disputing of the pretended Donation of Constantine the great of Rome Italy and Supreame jurisdiction there to the Pope resolve this a Donation void because the Emperouâ— by Law cannot give away any of his Empire it being contrary to his Coronation Oath wherein hee sweares b to maintain the Dignities and Rights belonging to the Empire that he 〈◊〉 impaâ—re the goods and state of the Empire but keepe inviolable the Rights of his Kingdome and the honour of his imperiall Crowne By vertue of which Oath they hold the Emperour strictly obliged in duty both to God and the Empire to take to themselves not onely all those large and faire Territories which the Pope hath taken either by force or fraud invâ—ded decking himselfe with the Eagles plumes but specially they ought to resume that Dominion in those very Lands which the Pope now challengeth as his owne by force of this forged grant c Baldus a learned Civilian writes That the Doctors of the Law determine That Constantines pretended Donation neither is nor possibly can be of force to passe away either the propriety or supreame Dominion in these Territories or the Imperiall jurisdiction over them For to say that the Emperour would by his Donation mutilate or cut away the Members of the Empire is a kinde of folly d Arctine not onely assents to Baldus but much commends his judgment therein Baldus saith he doth elegently teach that the Emperour cannot give away any quotient neither a third nor 4th part nor halfe of his Empire Whereby Baldus meanes that the Empire being an intire and universall power the Emperour by giving ought ceaseth not to be universall Lord of all belonging to the Empire e Lucas de Penna is very pregnant in this point The Royalties of the Empire writes he cannot be alienated from the Emperour Yea though the Emperour should sweare that hee would not revoke such Royalties as were alienated to the preiudice of his Crowne and Dignity yet notwithstanding this his Oath hee might recall such alienations because the Emperour sweares at his Coronation to keepe safe the honours and rights of his Kingdome â—ut by alienating his demaines and Territories he doth not preserve but impaire the Imperiall Rights f Albericus de Rosate is copious in this case Let us see saith he whether Constantines Donation could be of force to preâ—udice his Successors Accuâ—stus holds it could not so doth John de Parisiis And he gives this reason thereof Because none deputed to an office may do ought against his own office But it is against the office deputed to the Emperour to impaire his Empire or cut or take away any part from it For by the same reason that he cuts away one part he may cut away also another and so may his successors and so the Empire at last should be bâ—ought to nothing and utterly destroyed which is against the publique good and the end why the Empire is ordained Whereupon I doe believe that the foresaid Donation by law cannot be of â—orce to prejudice the Empire or the Successors The same Doctrine is delivered for Law by Boetius Epon Herric qu. qu. 3. nu 43. quest 5. nu 19. 27. 34. by Didacas Coverrumius Practic qu. c. 4. nu 1. by Franc. Vargas De Author Pontifi Axiom 1 Num. 2. Gulielmus Benedictus Caralus Degrossatus Felinus with others All which I have cited to shew the concurrence of the Civill with our common law in this particular and to resolve all opposites in this point who scruple at
was to endure only among the Queenes lâ—fe as appeares by the 〈◊〉 in it whereby they enact that if any person or persons 〈◊〉 discover do unlawfully 〈◊〉 or tâ—eir owne Authority which is none of Sir Iohn Hothams case who did nothing but by order of Parliament compasse imagine conspire or advise 〈◊〉 wayes or meanes wit foâ—ce or craft c. Maliciously or Rebelâ—iously which he did not but by authority of Parliament to take detaine or keepe from the Queene any of her Castles Towers Fortresses or holds c. And do advisedly by any expresse word speech act deed or writing utter or declare his said malicious and rebellious intents that then every peâ—son or persons so offending in the Premises being thereof lawfully convicted according to the Lawes of the Realme shall be adjudged a Felon â— Felons and suffer paines of death as in cases of Felony c. And if any person or persons do at any time hereafter with force Maliciously and Rebelliously which is none of Sir Iohn Hothams case who did all by the Parliaments command detaine keepe or with hold from the Queenes Majestie any of her Castles Towers Fortresses or holds within the Realme or any of her Dominions or Countries or Marches of the same or do Maliciously and Rebelliously or with force detaine keepe or with-hold from her Maiestie any of her Ships Ordnance Artillery or other Munitions or Fortifications of Warrs and do not render and give up the same to our Soveraigne Lady or such persons as her Majestie shall appoint to receive the same to her use within six dayes next after he or they so offending shall be commanded by our Soveraigne Lady the Queene by open Proclamation under the great Seal of England to be made in any place or Market Towne within the County where any such offence shall be committed c that then every person or persons so offending their Ayders Counsellors and Abbetters being thereof Lawfully convict according to the Lawes of the Realme shall have and suffer such paines of death and also shall forfeit and lose as in cases of high Treason limitted and acustomed By this expired Act which was to continue onely during the Queenes life it is evident First that this detaining of the Kings Castles Forts Ships and Ammunition is no Treason within 25. 6. 3. for then this Law had beene idle and superfluous especially being to continue but during the Queenes life and so there can be no Treason at this day in Sir Iohn â—othams Act Secondly That no detaining or with-holding of such Castles Forts Ships and Ammunition is Treason within these particular acts but that which is done maliciously and Rebelliously and continued six dayes after a Proclamation under the great Seale and proclamed in the Couâ—ty to deliver them up unto the Queene or her substitutes for her use Now Sir Iohn Hotham detained Hull and denyed his Majestie to seize and enter it not Maliciously and Rebelliously but in obedience to the Parliaments command which intrusted him to keepe it for the present both for the King and Kingdomes use for the prevention of Civill-warres and danger to the Realme and the excluding of forraigne forces which might be landed there neither did his Majestie make any Proclamation under his great Seale or give him six dayes space to deliver it up Therefore this Act of his is and can be no Treason neither within the particular expired forecited Acts were they in force much lesse within 25. E. 3. which extends not to this case And so his Majestie was utterly mistaken in the Law in proclaming Sir Iohn Hotham Traytour and declaring this act of his to be Treason of his owne head without consulting with his Judges or Councell learned in the Lawes who would questionlesse have informed him That this Act of his is now neither Treason nor Felony by the Law had he done it of his owne voluntary accord much lesse seeing he did it onely by the Parliaments direction and command as their Servant for the common safety of the Realme exclusions of forraigne forces and Artillery and prevention of an intended Civill-warre without any thought of the least disobedience or disloyalty to his Majestie into whose possession he declared he was and is ever ready to surrender up the Towne as soone as the Parliament shall command him In a word the Scotâ— late seizing upon all his Majesties Townes Castles in Scotland and on New castle here and detaining them against him after demands hath by his Majestie and both Kingdomes in Parliament beene tacitly if not expresly resolved and declared to be no Treason being done for the publique peace and safety of the whole Realme of Scotland and England Therefore much more must Sir Iohn Hothams seising but of Hull one single Towne and his detaining it for a season onely for his Majesties and the Kingdomes use and the peace and safety of the whole Kingdome and that by the Parliaments expresse command as their Instrument be adjudged no Treason Felony no nor Misdemeanor And since both Houses of Parliament the only proper Judges of Treason to whom both the King Sir Iohn appealed for justice have upon full hearing and debating of the cause voted and adjudged it to be no Treason or offence and published these their Votes in print to all the world I cannot discerne how by any Law his Majestie or his Malignant Counsellors can possibly fasten any charge of Treason Felony or Misdemeanour on Sir Iohn but must all conclude him to be an innocent Noble and weldeserving Gentleman for so faithfully and couragiously discharging the trust reposed in him by the Parliament for the whole Kingdomes peace and security and his Majesties safety too As for his late drowning of the Country about Hull to the spoile of much Grasle Corne and great prejudice of particular men with which his Majestie chargeth him in his last Letter to the Houses it is onely for the better preservation and defence of Hull for the common safety and therefore he may by Law justifie this Act even as men in times of Warre may justifie the burning or demolishing of a Suburb for the whole Cities safety and the making of Forts and Trenches in another mans ground for to resist an invading Enemy Which I have formerly proved Lawfull by our Law-bookes Moreover this drowning was through his Majesties owne occasion on whom the blame must originally rest who came to beseige Sir Iohn Hotham as a Traytour and take Hull out of his custody contrary to the trust reposed in him by the Parliament by force of Armes with an Army of Horse and Foote to the open violation of the Kingdomes peace the endangering of the whole Realme and Parliament against whom this warre is principally raised and intended under pretext of being avenged of Sir Iohn Hotham who hath done nought but by the Parliaments direction as their servant and trustee for the safe keeping of Hull not against the King but onely for the King and
this Land have now uninterruptedly enjoyed almost an hundred yeares together through thine extraordinary mercy do thou out of thy superaboundant goodnesse continue and z preserve us still in perfect peace whose hearts are stayed on thee And let there be no end of our peace with thy heavenly Majestie with our owne consciences and one with anâ—ther King with Parliament Kingdome and People and they with King till Iesus Christ the a Prince of peace his second coming who shall give all his b everlasting peace and blisse in his coelestiall Kingdome Amen Amen FINIS a In sundry Declarations and in certain Propositions concerning the raising of Horse c. b Numb. 6. 26. c 2 Chron. 9. 8. Râ—m 1â— 1 2. 4. 6. d See 1 Pet. 5. 2 3 4. e Neh. 2. 10. 2 Chron. 1. 10. 2 Chron. 9. 8. 2 Sam. 23. 3 4. f Plutarchi Apothegmata g Hist. l. 10. p. 486. h De Clementia l. 1. c. 19. i Ibidem cap. 26. k Zonarus Annal. Tom. 3. p. 117. l Spelmaâ—ni Concil. p. 34. and in sundry other of our Wriâ—ers m See Totles Magna Charta 1571. The Parliaments Remonstrance 26. of May 1642. p. 9 And his Majesties Answer thereto p. 16. â—7 Conclusions deducted from the former Proposition * Nullihostes digniores supplicio sunt quam ij qui contra patriam arma sum unt 〈◊〉 ad Qu. Iretrem * See 1 Kings 21. throughout 2 Kings 9. 25. Exod. 1. 16. to 22. n 1 Sam. 22. to 27. o See Mâ—thew Paâ—â—s Hoâ—â—â— Waâ—singham Speed Stow Gâ—â—ston Mathew Westminster 〈◊〉 and others p Optin 〈◊〉 〈◊〉 〈◊〉 qui et omnibus Laudibus 〈◊〉 qui sua corpora pro 〈◊〉 〈◊〉 defâ—â—sione periâ—uris ab jecerunt Isocraâ—es p. 108. Nihil est praestabilius viro â—orti quam perâ—â—uâ—â—s patriam liberaâ—e Cicero pro An. Milone Orat Mortes pro paâ—â—â— appoâ—â—ae non soâ—uâ— gloâ—â—â— Rhetoâ—ibus sed etâ—aâ— beatae vâ—der solent Creâ—â—o â—ust Quaest lib. 2. * See Cookes 〈◊〉 on Magna Charâ—a fâ—l 17â— 175. And Leges Edwardi Regis cap. de Herâ—tochijs in Lamberds Archion q See the Commons Declaration concerning the Commission of Array Iuly 1. 1641. Whâ—re it is fully proved r 1 Sam 25. Å¿ â—5 H. 6. 19. Fitz. Devise 5. t M. â— H. 5. Fitz Executors 108. u 〈…〉 Fitz Qu. Imp. 35 55 5â— 11â— 118. 189. Live y. 23. Prese 〈…〉 1. x â— E. 4 45 b y Mathew Paris Hast Minâ—r in Ioan. Dr Crakenthorpe of the Popes temporall Monarchy c. 2. pâ—ge 13â— to 25â— z Ro Pâ—rl An. 40 L 3. nu â— a See Doctor Crakenthorps Defence of Constantine c. aâ—d p 〈◊〉 13 to 175. b Mat. Paris Anno 1â—10 p. 306. Baldus in Proâ—â—â— de Feud nu 32 Luâ—aâ— de Penuâ— Cod. de omni agro deâ—eâ—â—â— Quicunque desertum f. 185. col â— c In Proâ—â— miâ—â—â— Feud nu 32 33. d In Rubric 〈◊〉 verbo obligâ—t e Col. de Omni 〈◊〉 serâ—â— l. Qu. 〈…〉 f De 〈◊〉 cunq prae 〈◊〉 l Bene a Zenone nu 4. f. â— c. 4. Deductionâ— from hence g See 1 Eliz. c. 19. 1 Iacobi c. 33 h See Mathew Paris Holinsheed Speed Graston and others in the lives of King Iohn Henry 3. Ed. 2. Rich. second i See the Acts of Pacification 12. H. 8. 2. 22. E. 4. 35. l. 1 H. 7. 7. 5. H. 7. 6. Baâ—â—e 〈◊〉 l 8 P. â— 23. Br. Custone 145. m 29 H. 8. Dyer 36. 6. Br. Trespas 406. n â—3 H. 8. 16. 9 E. â— 35b Br. Trespas 406. o 8 E. 4. 1â— Fiâ—z Barr. 93. p See his Majesties Answer to the Declaration May 4. 1642 P 3. 10. 11. q See the printed Votes r Proposition third â—eâ—uction 2. 4. and elsewhere Å¿ See the Declaration and Votes of the House in Sir Iohn Hothams case which they there truly state Aprill 28. 1642. t See Stephen Gardiners Letter to the Lord Protector Fox Acts and Monuments first Edition p. 741. b. where he affirmes that he being Ambassador to Henry the 8. in the Empeperours Court did there in a case of Iewells defend and maintaine by commandement of the King that the Kings of this Realme were not above the orders of their Lawes u Silius Italicus Pan. Bellaâ— l. 11. f. 142. x Heb. 19. 20 Rom 15 33. y Psal. 29. 11. z Isâ—y 26. 3. a Isay 9. 6. b Isay 51. 11. c. 61. 7.